Massey v. Warren, 52 N.C. 143, 7 Jones 143 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 143, 7 Jones 143

WEST MASSEY v. REDDIC WARREN.

Where a deed, conveyed all the grantor’s property, except such part as the law allows poor debtors, it was Held that property, which might have been set apart for the debtor, under the 8th and 9th sections of the 45th chapter of the Rev. Code, but was not, did not fall within the exception, but passed by the deed.

Action of trover, tried before Dick, Judge, at the Spring Term, 1859, of Johnston Superior Court.

The plaintiff declared for the conversion of a number of hogs, a quantity of corn and fodder, farming utensils, and several articles of household furniture, consisting of beds, chairs, «fee., which he claimed under a deed, executed to him by one George W. Edwards, dated 7th of September, 1855, duly proved and registered; the material portion of which deed is as follows :

“ Know all men by these presents, that I, George W. Edwards, of the county of Johnston aforesaid, in consideration of the sum of one dollar to me in hand paid by West Massey, of the county aforesaid, the receipt whereof is hereby acknowledged, do hereby give, grant, sell and convey, unto the said West Massey, all the goods, chattels, wares and merchandise following, to wit: one sorrel horse, six head of hogs, one cart* one carryall, all my farming utensils, all my growing crop and household and kitchen furniture, (e xcepting only such part as the law allows poor debtors) to have and to hold the same, «fee.”

It was proved that the defendant had the property, in controversy, levied on and sold by a constable, to satisfy sundry executions, which he held against Edwards, issued on judgments obtained subsequently to the making and registration of the deed.

It was insisted by the defendant’s counsel, that a part of the property in question, was excepted from the deed, as being that which the grantor was entitled to hold free from execution, by the 8th section of the 45th chapter of Rev. Code, entitled “ executions.”

The Court was of opinion against the defendant upon this point, and under instructions to that effect, the jury found a verdict for the plaintiff. Judgment. Appeal by defendant.

A. M. Lewis and R. G. Lewis, for the plaintiff.

Miller and Rogers, for the defendant.

Manly, J.

We concur with the Court below, in the opinion, the whole of the debtor’s property passed under the deed of September 7th, 1855, except the articles enumerated in the 7th section of the Revised Code, ch. 45.

Articles which may be allowed under the 8th section, until they are set apart according to the provisions of the 9th, are in every respect, undistinguishable from the rest of the debt- or’s property. The whole is subject to execution, and may be treated in all respects as property unencumbered by any lien, growing out of the statute provisions made for “ poor debtors.”

The object of the deed, ui^der consideration, seems to have been, to convey every thing that was not already protected from a levy, and, consequently, it embraced every thing not absolutely exempt. Other articles than the excepted ones of the 7th section, are only conditionally exempt, and do not belong to the charity list until certain legal proceedings are had, by which the property is impressed with a new character, — a character which it does not intrinsically possess. It does not appear that any articles had been sot apart under the provisions of the 8th and 9th sections of the act, at the time of the execution of the deed, and from, this defect of evideuce, as well as from the fact that the defendant made a levy on all such as might have been allotted, we assume there was no allotment.

Under such circumstances, a deed of all property, “ except such as is allowed by law to poor debtors,” covers all except such as was then under legal exemption.

If this deed be tested by another rule of construction, it may be made, perhaps, a little more plain. Take its provisions, as we are required to do, most strongly against the grantor, and allow the greatest amount of property to pass by it, which its words will warrant, and clearly, all will be embraced, save such as possesses an vnh&rmt exemption from the claims of creditors — -the articles enumerated in the 7th section. There is no error.

Per Curiam,

Judgment affirmed..